¶1It appears that this certiorari was returnable to September, 1792; that the return is actually dated on the first day of that month, and that it has never been prosecuted. We therefore affirm the judgment, with costs, on that ground, without considering the reasons.
¶2[229] If, however, the question which appears by the endorsement alluded to was raised, we see no reason why a constable,'Who has been compelled to pay the debt of defendant against whom he has executions, may not recover from him the amount thus actually paid, in an action for money paid, laid out, &c., for the use of such defendant,
¶3Judgment affirmed.
¶4A constable, however, who suffer» an execution to sleep in his hands, and then pays the money to the plaintiff without any previous demand of the defendant, and without his request, cannot maintain an action against the defendant for the amount paid to the plaintiff on the execution. Jones v. Wilson, 3 Johns. 434.